1. Collector Land Acquisition/Dy. Commissioner, Srinagar issued Notification u/s 4(1) of State Land Acquisition Act, 1990 (1934 A.D) (for short Act of 1990) on 27th of August 1975, whereunder land measuring 209 Kanals 6 Marias was notified for being acquired for public purpose viz setting up of Educational Institution. Objections were filed to the notification by appellants. The part of the notified land was de-notified and acquisition proceedings culminated into publication of award on 11th Jan. 1985. The appellants received the assessed compensation under protest and sought reference U/s 18 of the Act of 1990 to the Civil Court as they were not satisfied with the assessment of amount of compensation. The compensation was fixed at Rs. 22,000/- per Kanal by the Collector. The reference Court vide its judgment dated 14th June 2004, dismissed the claim of the appellants which was projected in the application filed u/s 18 of the Act of 1990. It is this judgment/award which has become cause for filing of this Civil First Appeal. 2. Ld counsel for the appellants submitted that the civil Court has not adverted its attention to the legal and factual aspects of the case properly. Ld counsel submitted that having regard to the evidence and material brought on record before the civil court, higher rate of compensation was to be paid to the appellants for the acquired land. Ld counsel extensively referred to the evidence of the parties and submitted that the impugned judgment would require to be set aside and in the facts and circumstances of this case, compensation at a higher rate would require to be paid to the appellants. Ld counsel in support of his contention referred to and relied upon the judgments of the Hon'ble Supreme Court reported in AIR 2004 SC 1179 ; AIR 1998 SC 2470 ; AIR 2006 SC 291 and (2003) 4 SCC 481 ). 3. Ld counsel for the University of Kashmir submitted that the Award passed by the Collector Land Acquisition as also the judgment of the reference Court (civil Court) are both factually and legally correct. Ld counsel submitted that the adequate and due compensation has been fixed and paid to the appellants. Ld counsel submitted that the impugned judgment does not call for any interference. Ld counsel submitted that the adequate and due compensation has been fixed and paid to the appellants. Ld counsel submitted that the impugned judgment does not call for any interference. Ld counsel in support of his contention referred to and relied upon the judgments of the Hon'ble S.C reported in 2008 (1) SCC 554 ; AIR 1988 SC 2470; (2004) 8 SCC 270 as also (2003) 4 SCC 481 . 4. The civil Court on 23rd May 1989 framed the issue which are taken note of: 1. Is the compensation paid fair.? OPD. 2. In case the issue No. 1 is answered in negative, what should be the fair compensation? OPP. 3. Is the reference made by the Collector time barred and incompetent, if so, how? OPD. 4. To what relief, the applicants are entitled ? 5. The appellants in support of their claim examined one Gh. Mohd Baba, who in his deposition before the civil court on 16th June 1998, stated that he has seen Mirza Bagh, which is adjacent to Nigeen Lake. He further stated that in the year 1975 he purchased land at the rate of Rs. 3500/- per marla at Hazratbal. He has deposed that at that point of time rate of 1 Kanal of land was Rs. 75,000/and the value of the acquired land was Rs. 2/- lacs per Kanal. It is further stated that Mirza Bagh is located at a good site and the land which had fruit bearing trees was forcibly taken by the Government. The witness also made reference to sale deed executed on 3rd of Dec. 1975. In cross examination, the said witness stated that the land was acquired for the University of Kashmir and residential quarters for the Professors have been constructed on it. The statement of another witness of the appellants namely Gulzar Ahmad Koul, was recorded on 21st of Oct. 1998. In his statement he deposed that he is resident of Sadribal and is holding the post of Patwari. He has further deposed that Mirza Bagh is situated in Nigeen Sadribal. Land in question was acquired for the benefit of University of Kashmir. On the basis of the record, the witness further deposed that land measuring 5 marlas covered under S.No. 453 was sold for Rs. 7000/-. The sale deed was registered on 5.9.1974 and order on mutation No. 1283 was passed. Land in question was acquired for the benefit of University of Kashmir. On the basis of the record, the witness further deposed that land measuring 5 marlas covered under S.No. 453 was sold for Rs. 7000/-. The sale deed was registered on 5.9.1974 and order on mutation No. 1283 was passed. Likewise, land measuring one kanal two marlas was sold for an amount of Rs. 40,000/- and order on mutation was passed on 3rd Sept. 1981 and on 6th May 1976 one kanal land was sold at the rate of Rs. 40,000/- In cross examination, the witness stated that on 25th Nov. 1974 land measuring 2 Kanals 12 = Marias has been sold for an amount of Rs. 28,000/- and land measuring 8 Kanals under survey No. 9 was sold for Rs. 40,000/- in respect of which order on mutation No. 1345 has been passed. The witness further deposed that the rate on the date of his deposition before the court was Rs. 8/- lacs per kanal. Another witness Syed Sharif ud din (Girdawar), whose statement was recorded on 21.10.1998, deposed before the civil court that he has seen Mirza Bagh. The said land was taken by the University authorities. Some portion of the land is towards the Nigeen lake and at that point of time the rate of land was Rs. 8/- lacs per kanal. In cross examination the said witness stated that he does not know as to what would have been the rate of one kanal of land when it was acquired. The statement of one Mohd Sideeq Mir was recorded by the civil court on 18th Nov. 1998. In his statement the witness deposed that he has seen the Mirza Bagh. Fruit bearing trees were standing on this land, besides Chinar trees were also planted in the land. The witness further deposed that one portion of land adjoins the Nigeen Lake and is in possession of the University authorities. Residential quarters have been constructed on the said land. The witness further deposed that he had also land in the said area and in the year 1975 the rate per kanal of the land was Rs. 2/- lacs. The witness further deposed that on one side of the land is the road and on the other side Nigeen lake. The witness deposed that in the year 1984 the value of the land per kanal was Rs. 2/- lacs. The witness further deposed that on one side of the land is the road and on the other side Nigeen lake. The witness deposed that in the year 1984 the value of the land per kanal was Rs. 1.50 lacs. The University authorities have constructed residential quarters on the said land which have been rented out. The witness further stated the total land was 206 kanals out of which 103 kanals have been de-notified. In cross examination, the witness deposed that he cannot produce sale deed to show that the land was being sold at Rs. 5/6 lacs. The witness also stated that the land which was de-notified is under possession of some influential people. One of the appellant Mirza Muzaffar ud din in his statement recorded on 24th Feb. 1999 deposed that at Sadribal Nigeen he had ancestral property of about 210 kanals of land. This land belonged to many co-sharers and portion of land measuring 105 kanals came to the share of his father Mirza Salf ud din, and the land was transferred by him to his children who are applicants 2 to 7 and this is reflected in the revenue records also. The appellant further deposed that his younger brothers were at that point of time studying and he had proposed to construct hotel and tourist hut on the land. The award was published in the year 1985. The witness stated that at the time of acquisition of the land it was being sold at Rs. 1/- lac per kanal. The witness further deposed that the compensation fixed is meager. In his cross examination the witness stated that in the year 1976, they came to know that the Collector has notified their land and it was to be utilized for the benefit of University. The land was, however, not given to the University. The value of the land per kanal was more than 72,000/-. The statement of Gh. Mohd Baba was again recorded on 31st of May 1999, in which he deposed that he has seen Mirza Bagh, finit bearing trees were located in the said land and trees of Chinar were also on the said land. The land is adjacent to Nigeen lake and is presently under the possession of University of Kashmir. The statement of Gh. Mohd Baba was again recorded on 31st of May 1999, in which he deposed that he has seen Mirza Bagh, finit bearing trees were located in the said land and trees of Chinar were also on the said land. The land is adjacent to Nigeen lake and is presently under the possession of University of Kashmir. The witness further deposed that when the land was acquired by the University authorities, the minimum rate of per kanal was Rs. 1.25 lacs. The witness has deposed that in the year 1975 he purchased land at the rate of Rs. 75,000/- per kanal. The land is situated at Dargah Sharief, which is adjacent to Mirza Bagh. The witness further deposed that the land was purchased from one Mohd Shafi in the year 1975. The sale deed was marked as "EXP-A" and "EXP-B". The witness further deposed that the rate of one kanal at present is minimum Rs. 10/- lacs, some people have sold the land Rs. 12/- lacs per kanal. The witness further deposed that the land which was purchased by him was away from the road whereas the Mirza Bagh was on the brink of the road. After recording of the statement of Gh. Mohd Baba, Id counsel for the appellants made statement before the court that the appellants do not want to lead further evidence and the court on the said statement closed the evidence of the appellants. One Mohammad Ashraf, clerk (Jr. Assistant) who was posted in D.C office, Srinagar, appeared as witness of Collector on 25th Nov. 1992 and deposed that land measuring 103 Kanals and 9 Marias was acquired and the said land is situated at Saderibal Srinagar. The land was in the ownership and in possession of Mirza Saif ud din. The land was acquired by the Collector for Kashmir University and award was published on 11.01.1985. The witness further deposed that the Tehsildar had fixed rate of one kanal of land at Rs. 16,000/- but the Collector in his award fixed the rate of one kanal at Rs. 22,000/-. The compensation has been paid to the owners of the land and they have received the same under protest as they were not satisfied with the rate fixed in the award. 16,000/- but the Collector in his award fixed the rate of one kanal at Rs. 22,000/-. The compensation has been paid to the owners of the land and they have received the same under protest as they were not satisfied with the rate fixed in the award. In cross examination the witness has deposed that 209 kanals of land were notified and there after the land of the appellants measuring 105 kanals was acquired and the rest of the land was de-notified. The witness pleaded ignorance when he was asked as to whether the rest of the land was de-notified for the reason that it belonged to the relatives of the then Chief Minister of the State. The witness further deposed that he is posted in the D.C office for the last six months. The witness further deposed that he does not know where the land was situated and what could be its value. The witness further stated that at the time when the land of the appellants was acquired, he cannot say whether any rate was fixed, as the record was not with him. The witness stated that after examining the office records he has deposed before the court. Ali Mohammad Malik, who was posted as Revenue Attorney on 25th Nov. 1999 appeared as witness of Collector and deposed before civil court that the subject matter of the land has been acquired by Collector Srinagar for Kashmir University, the land is about 103 kanals and few marlas. The market rate of the land at the time of acquisition was rupees 16,000/- per kanal and Collector fixed the rate Rs. 22,000/-per kanal in the award. The appellants have received the compensation under protest. In cross examination, the witness deposed that he has given rate of Rs. 22,000/-per kanal as same is reflected in the records. Statement of Munshi Ab. Rashid, who was posted as Section Officer in Kashmir university was recorded on 19th Dec. 2001. He has deposed before the trial court that for about 39 years he has worked as an employee of the University. He has witnessed all the developments which have taken place in the University during this period. Mirza Bagh was acquired. The witness further deposed that for last twenty years he is residing at Lai-Bazar. 2001. He has deposed before the trial court that for about 39 years he has worked as an employee of the University. He has witnessed all the developments which have taken place in the University during this period. Mirza Bagh was acquired. The witness further deposed that for last twenty years he is residing at Lai-Bazar. The witness further deposed that he purchased the land in the year 1974 at Lal Bazar at the rate of Rs. 8,000/- per kanal. The distance between Lal Bazar and Saderibal is 3 kms. Lalbazar is situated at another bank of the Nigeen Lake. The area where Mirza Bagh is located was not inhabited by the people. The witness further deposed that there were many fruit bearing trees in Mirza Bagh but there was no Chinar tree. The witness in cross examination also deposed that as per his knowledge the rate of land was fixed at Rs. 4,000/- per kanal. No sale deed was executed during that period in respect of the said land. Statement of one Ali Mohammad Bhat who appeared as witness of respondent No. 2 was recorded on 10th June 2002. In his statement, the witness deposed that the University adjoins the Nigeen lake and Mirza Bagh is also situated in the same vicinity. The part of the Mirza Bagh is under possession of the University and some part of it is in the possession of family members of Mirza dynasty. A portion of the land has been sold by Mirza family. The witness further deposed that he was born at Nigeen and he has spent entire life at Nigeen. The witness further deposed that Mirza Bagh is located towards Saderibal, whereas the part of the University is adjoining Hazratbal. The witness further deposed that in the year 1975-76 Saderibal was village and the rate of one kanal of land in Saderibal was Rs. 15,000/-, and then said around Rs. 10,000/-. The witness further deposed that Saderibal area was declared by the Government as green belt, the land could not be sold or purchased in that area. The witness also stated that when the land was acquired some fruit bearing trees were standing on it, though, it would not produce sufficient fruit. In cross examination the witness stated that he personally knows the Mirza Bagh as he is resident of that area. The witness also stated that when the land was acquired some fruit bearing trees were standing on it, though, it would not produce sufficient fruit. In cross examination the witness stated that he personally knows the Mirza Bagh as he is resident of that area. He has further stated that he is not employee of the University. He has also stated he is residing two kms away from Mirza Bagh. He has also deposed that he is residing near Nigeen Club. The witness further deposed that in the year 1975-76 one kanal of land was being sold at Rs. 15,000/- at Saderibal. On 10th June 2002 statement of Ab.Majid Bhat R/o Nigeen was recorded. The witness has stated that he is resident of Nigeen as he was born at Nigeen itself. He has seen Mirza Bagh. One portion of the Mirza Bagh adjoins Saderibal and the Nigeen lake. In the year 1975-76 there was no much value of the land in that area as people were not having money. The witness further deposed that Sadderibal area was declared green belt and land was being neither sold nor purchased. The witness has further deposed that at Nigeen the land was being sold and purchased and during that period one kanal of land was being sold at the rate of Rs. 10,000/-. Mirza Bagh was uncultivated and in one part of it there were some fruit bearing trees and that portion of the Mirza Bagh which is in the possession of the University was not having any fruit bearing trees. The distance between Nigeen club and Mirza Bagh is less than one km. The witness further stated that in the year 1980 his uncle Gh. Nabi Bhat sold the land at the rate of Rs. 10,000/- per kanal and the rate of land per kanal in Mirza Bagh was about Rs. 15,000/-. Statement of one Gh. Qadir Teeli was recorded on 26th Dec. 2002. lie has stated that in the year 1975 he purchased 14 marlas of land from one Gh. Mohammad Teeli and sale deed was executed and the rate of 14 marlas of land was Rs. 3000/- and he purchased the land for the said amount. The witness further stated that the purchased land is adjacent to Mirza Bagh. 2002. lie has stated that in the year 1975 he purchased 14 marlas of land from one Gh. Mohammad Teeli and sale deed was executed and the rate of 14 marlas of land was Rs. 3000/- and he purchased the land for the said amount. The witness further stated that the purchased land is adjacent to Mirza Bagh. As per the award of the Collector, the appellants in their objections filed before Collector, had claimed that the rate of the land was more than Rs. 50,000/- per kanal. Some other objectors claimed the compensation at the rate of Rs. 40/50 thousand per kanal. The Collector in the award fixed the rate of the land per kanal at Rs. 22,000/-. In the application filed u/s 18 of the Act of 1990, the appellants stated that price per kanal of the land in the year 1976 was about Rs. 75,000/-. 6. The Notification under section 4(1) of the Act was published on 27th August 1975 and declaration u/ss 6 and 7 were made in the year 1976, as was communicated to the Collector vide communication dated 24th Dec. 1976 and eventually the award was published on 11.1.1985. 7. Section 23 of the Land Acquisition Act provides that what is to be considered in determining the compensation. Section 23 is taken note of:- "Matters to be considered in determining compensation. 1976 and eventually the award was published on 11.1.1985. 7. Section 23 of the Land Acquisition Act provides that what is to be considered in determining the compensation. Section 23 is taken note of:- "Matters to be considered in determining compensation. (1) In determining the amount of compensation to be awarded for land acquired under the Act, the Court shall take into consideration.- first, the market value of the land at the date of the publication of the declaration relating thereto under section 6; secondly, the damage sustained by the person interested by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any) sustained by the person interested at the time of the Collector s taking possession of the land by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land by reason of the acquisition injuriously affecting his other property movable or immovable in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6, and the time of the Collector's taking possession of the land. (2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market value in consideration of the compulsory nature of the acquisition." 8. What is required to be ascertained is the market value of the land which was prevalent at the date of publication of Declaration u/s 6 of the Act of 1990. The notification u/s 6 was issued in the year 1976. Two types of evidence have been brought on record before the civil court viz oral and documentary. What is required to be ascertained is the market value of the land which was prevalent at the date of publication of Declaration u/s 6 of the Act of 1990. The notification u/s 6 was issued in the year 1976. Two types of evidence have been brought on record before the civil court viz oral and documentary. The oral evidence which has been lead by both the sides cannot be relied upon as witness of both sides appear to have projected exaggerated view and instead of rendering assistance for arriving at just conclusion in fixing the market value of the land in the year 1975-76 have tried to help respective parties, and it is hazardous in such circumstances to place reliance upon the oral evidence led by the parties. 9. The only evidence which is available on record, thus, is the documentary evidence. Patwari Gulzar Ahmad Koul has referred to sale deed which was registered on 5.9.1974 and whereunder land measuring 5 marlas was sold at the rate of Rs. 7,000/- similarly in Sept. 1981 one kanal 12 marlas of land was sold at the rate of Rs. 40,000/- and one kanal of land was sold in the year 1976 at the rate of Rs. 40,000/-. This is what has been deposed by Patwari witness in his examination in chief. The sale deed registered in the year 1974 is for a piece of land measuring 5 marlas. The sale deed executed in 1981 is of no assistance to the appellants because the declaration u/s 6 has been made in the year 1976. Another instance cited by Patwari witness is of May 1976. Patwari witness further stated that one kanal of land was sold at the rate of Rs. 40,000/-. He has not identified the land, and has not given its location and its description, so as to enable the court to find out its potential value and its proximity with the acquired land. It would be quite risky to rely upon such evidence for fixing the market value of the land. In his cross examination the said Patwari witness has stated that in Nov. 1974, two kanals 2 = marlas of land were sold at the rate of Rs. 28,000/- and 8 kanals of land under survey No. 9 were sold at the rate of Rs. 48,000/-. 10. In his cross examination the said Patwari witness has stated that in Nov. 1974, two kanals 2 = marlas of land were sold at the rate of Rs. 28,000/- and 8 kanals of land under survey No. 9 were sold at the rate of Rs. 48,000/-. 10. In this factual background, it cannot be said that the market value of one kanal of land was more than Rs. 22,000/- in the year 1975-76 when 2 = kanals of land in Nov. 1974 were sold at Rs. 28,000/-. The claim that five marlas of land were sold at Rs. 7000/- cannot be taken to be true and correct reflection of the market value of the land. 11. Gh. Mohd Baba's, statement has been recorded, first on 16th June 1998, and subsequently on 31st of May 1999. In his first statement he stated that in the year 1975 he had purchased one marla of land at the rate of Rs. 35,00/-. In his second statement he has stated that in year 1975 he has purchased land and paid Rs. 75,000/- per kanal. In this behalf he has referred to two sale deeds, EXP-A and EXP-B. 12. Perusal of EXP-A would reveal that one Ab. Rashid Itoo and Rehim Itoo sons of Ismail Itoo were owners in possession of land measuring three marlas situated at Saderibal. The land was in the shape of orchard and was sold to Gh. Mohd Baba. Gh. Nabi Baba sons of Mohd Ramzan Baba. Rupees five thousand was paid as sale price for the said land. The sale deed was executed on 1st of Nov. 1975. And EXP-B, would also reveals that Gh. Mohd Baba, Gh. Nabi Baba sons of Mohd Ramzan Baba purchased one kanal of land from Mohd Shafi Itoo and his mother for consideration amount of Rs. 3000/- the sale deed was executed on 19th Sept. 1975. The land, subject matter of sale deed is situated at Saderibal. 13. One of the witness stated that the area where the acquired land is situated in the year 1975-76, had no value, as people had no money in those days to purchase the land. The evidence of this witness would show that the people lacked material resources to purchase the immovable property. It is of common knowledge that prices of immovable properties/commodities is less when supply is more and demand is less. The evidence of this witness would show that the people lacked material resources to purchase the immovable property. It is of common knowledge that prices of immovable properties/commodities is less when supply is more and demand is less. In this case because of lack of purchasing power there was literally no demand, thus, the rate per kanal of land claimed by the appellants would not be justified on this score also. 14. This documentary evidence cannot be relied upon for the following reasons: a) These sale deeds pertain to two small portions of land viz three marlas and one marla, which in the facts and circumstances of this case cannot be compared with more than hundred kanals of land which was acquired. These sale transactions in comparison to huge parcel of land acquired are negligible and cannot be, thus, pressed into service for arriving at the proper decision to fix the genuine rate of the land. b) Purchase of these two small part(s) of land it appears was done to create evidence after issuance of notification u/s 4(1) of the Act of 1990, for securing higher rate for the acquired land. The transaction did not appear to be bona fide one and thus, no reliance can be placed on these sale incidents. c) The copy of the registered sale deed which is marked as "GO" pertain to the land measuring 14 marlas which is situated at Saderibal where the land, which is covered by EXP-A, EXP-B is located, has been sold for Consideration of Rs. 3,000/- and the sale deed was executed on 19th August 1975, when the sale deed EXP-A, EXP-B have been executed on 1st of Nov. 1975 and 12th Nov. 1975. The sale deed which is marked as "GQ" appears to have given correct valuation of the land in the year 1975 at Saderibal. The Tehsildar had fixed the rate at Rs. 16,000/- per kanal whereas, the Collector has enhanced it to Rs. 22,000/- per kanal. This appears to be correct comparative rate fixed by the collector and no interference is thus called for in the findings arrived at by the Civil Court while recorded finding on the issues 1 and 2. 15. Issue No. 3 was not pressed before the Civil Court. 16. Issue No. 4 has also been decided legally and properly and does not call for any interference. 17. 15. Issue No. 3 was not pressed before the Civil Court. 16. Issue No. 4 has also been decided legally and properly and does not call for any interference. 17. The Hon'ble S.C in Ravinder Narain's case reported in (2003) 4 SCC 481 has ruled that there is no absolute prohibition in determining the rate in the area by having the reference to rate fixed for small area. Reference and reliance can be placed on such rate for small plots when there is no other material available before the court to make comparison of the prices paid for smaller plots. In this case there is documentary evidence available for making comparison (marked 'GQ") to ascertain comparative rate. 18. The Hon'ble S.C in case Lucknow Development Authority, Appellant v. Krishna Gopal Lahoti and ors, Respondents reported in (2008) 1 SCC 554 at paragraph- 16 (e) has provided as under :- "it cannot, however, be laid down as an absolute proposition that the rates fixed for the small plots cannot be the basis for fixation of the rate. For example, where there is no other material it may in appropriate cases be open to the adjudicating court to make comparison of the prices paid for small plots of land. However, in such cases necessary deductions/adjustments have to be made while determining the prices. " 19. The evidence lead before the Civil Court when tested on the principles laid down by the Hon'ble Supreme Court would show that fair and adequate compensation has been paid to the appellants on the basis of the material available on record. There is no scope for enhancing the same. 20. For the above stated reasons, there is no scope for interference with the judgment of Id Civil Court/Reference Court. The appeal is accordingly dismissed. Record be send back along with copy of this judgment.